Thursday, March 26, 2015

Reading list: Campbell at 21/Sony at 31

When copyright lawyers gather to discuss
fair use these days, the most common refrain is its alarming expansion. This distress
about fair use’s enlarged footprint seems completely untethered from any appreciation
of the remarkable increase in exclusive copyright rights. ...

The idea … that copyright owners’ rights
could be greatly inflated without inspiring a comparable expansion in fair use seems
delusive. If many, many more uses are arguably prima facie infringing now than before,
it follows that fair use will need to stretch to permit more of them. None of the
voices expressing the hope that fair use could be confined or returned to its mid-20th
Century boundaries seem to endorse a proposal to cut back copyright rights to their
mid-20th Century limits. …

When Congress enacted the 1976 Act,
it apparently believed that consumers’ personal copying would not subject them to
liability for copyright infringement under the new statute, but nothing in the language
of the statute made that understanding explicit. Congress did not consider and did
not provide for claims that making devices that facilitate consumer infringement
might subject device makers to infringement liability. The Sony case, filed shortly
after the Act’s enactment, raised both questions.Confronted with a choice between finding liability
where Congress had not intended to impose it or construing the statute to reach
a narrower set of uses than the literal language might warrant, the Supreme Court
settled on a new formulation of the fair use privilege that allowed it to avoid
finding Sony liable for consumers’ personal copying. That fair use analysis wreaked
a lot of mischief in the decade it controlled, chiefly by making it much more difficult
for commercial uses to claim their uses were fair. It also, for good or ill, encouraged
both consumers and businesses to structure their interactions around the assumption
that consumers’ personal copying would normally be fair use. In 1994, the Court
decided Campbell, and replaced the analysis it had adopted in Sony with a test that
focused primarily on the transformativeness of the allegedly fair use. It left the
implications of that change for secondary liability and consumer personal uses uncharted.

. . . Advocates for copyright owners
resist any proposal to incorporate specific privileges and exceptions into the statute
to privilege uses that Congress deems non-infringing. They warn that any new privilege
or exception poses a grave risk that future pirates will make use of the privileges
to shield wrongful behavior. The uncertainty
surrounding consumer liability, moreover, is itself a weapon that can be deployed
against newfangled trumpet makers and the venture capital firms that might fund
them. With no specific exceptions, though,
courts have little recourse but to construe fair use as expansively as they have
recently construed copyright rights. And that is very expansively indeed.

Creative Commons/disclaimer

Text on this blog is licensed under a Creative Commons Attribution 2.5 License. Pictures and works quoted may be subject to other parties' copyrights.
I speak for myself. On this blog, I do not and cannot speak for Georgetown Law, the Organization for Transformative Works and/or AO3.